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how to get kicked out of your home or appartment

Of all the tricks and traps in the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), one of the nastiest is the burden-shifting that has gone on with respect to the automatic stay. Once upon a time creditors had to come to Court to put a debtor out of house and home — now the burden is on the debtor in certain cases to say why they shouldn’t, and to do it so that other creditors become aware of it! A pair of cases from Florida and Tennessee say it all.
In re Covert, 355 B.R. 327 (Bkrtcy.N.D.Fla. 2006). (Lewis M. Killian, Jr., Judge).

Debtor”s counsel filed a motion to extend the automatic stay on the 30th day after filing the petition and the Court denied it, noting that

  • unless extended by an order issued up to 30 days after filing, the automatic stay is terminated; and
  • local rules state that notice of such a motion must be sent to creditors not more than 5 days after filing
  • Taken together, this means the Court has no jurisdiction to extend the stay unless a motion is brought within 5 days of filing the case. The Court was particularly moved by the plight of the creditors who would be deprived of due process if notice were not properly given. Due process? How’s that for irony?

    In re Wilson, 336 B.R. 338 (Bankr. E.D. Tenn., 2005). (Stair, JR., Judge).

    Debtors filed their petition Nov. 1 and their motions to extend the stay Nov. 7 giving notice of a hearing on Nov. 23. Court denied the motions based on local rules which required that motions be set for hearing “at least 20 but no more than 40 days after service” unless authorized by the rule [not applicable] or by court order. E.D. Tenn. LBR 9013-1(f). Once more the Court’s sympathies lie with the creditors who were not afforded due process.

    Are you a Debtor, Debtor”s Attorney, or Case Trustee frustrated by the BAPCPA”s confusing standards and often awkward results? You are not alone. Learn more about the new bankruptcy law at M. Hedayat & Associates, P.C. or e-mail me at mmhedayat1@gmail.com to tell your story. All contacts are confidential.

    2 Responses
    1. Can I Use Bankruptcy to Stop an Eviction Proceeding? at Bankruptcy Law Network - Real Lawyers, Real

      […] blog has been written in part as a response to Mazy Hedayat’s recent post entitled “how to get kicked out of your home or apartment&#82…. I wanted to make clear that the rules regarding extension of the automatic stay in cases where […]

    2. M. Hedayat

      Attorney Stephen Otto of the Bankruptcy Law Network says in his post “Can I Use Bankruptcy to Stop an Eviction Proceeding” that the item is a response to this one. Mr. Otto’s post is well written and accurate, but I don’t see it is a response so much as a clarification of some points. By the way, if you’re reading this Stephen you may want to take another look at my original post which has as much to do with burden shifting under the BAPCPA as anything else. But thanks for reading and for your insightful comments.

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